Posted on 01/06/2005 3:56:54 PM PST by Ed Current
WASHINGTON – Will the new year give us a new Supreme Court justice? Or two, maybe three? Statistically, that should happen. The current court has not changed for 10 years, and that hasn't happened for 180 years.
The likeliest to create a vacancy is Chief Justice William Rehnquist. He has indicated no intention of retiring - on the contrary. But doctors say that an 80-year-old undergoing chemotherapy for thyroid cancer cannot expect to remain active for very long.
And so, though no one wishes Justice Rehnquist ill, there is much discussion about whom President Bush is likely to nominate. He has said he will choose someone who "knows the difference between personal opinion and strict interpretation of the law." But it isn't certain what that means, exactly, when applied to an individual. The president has also said he will apply no "litmus test." On the other hand, the announcement that he will resubmit the names of 20 appeals court and district court nominees who didn't make it in the last Congress suggests that he is squaring off for a confrontation with filibuster-wielding Democrats.
History teaches that a president can nominate someone he considers to be on his wavelength, only to find a justice harkening to a different drummer once safe behind the judicial curtains. Former President Eisenhower, asked once what mistakes he had made in office, responded, "Two, and both are on the Supreme Court."
He was referring to liberals Earl Warren and William Brennan. Former President Nixon could have said the same about Harry Blackmun, whom he nominated after judges Clement Haynsworth and Harrold Carswell were rejected by the Senate. As one of the "Minnesota Twins," with Chief Justice Warren Burger, he was considered a reliable conservative.
But, in time, Justice Blackmun became more and more liberal. He opposed capital punishment and a ban on flag burning. And he ended up writing the Roe v. Wade decision legalizing abortion.
What makes the next appointment so critical is the current delicate balance on the court. The lineup is generally considered to be 3-3-3: conservatives Rehnquist, Scalia, and Thomas; liberals Stevens, Ginsburg, and Breyer; and the swing moderates O'Connor, Souter, and Kennedy. Replacing Rehnquist would not change the balance unless his successor turned out to surprise President Bush the way Presidents Eisenhower and Nixon were surprised by their choices.
• Daniel Schorr is the senior news analyst at National Public Radio
Blackmun's papers give some sense of what may have happened to Kennedy over the years. "When one comes to this court," Blackmun said in a post-retirement interview with a former clerk, Harold Koh, "he has to grow a little, a lot if he can." In liberal parlance, "growing" is what conservatives do when they take office in Washington, then move to the left—away from traditional values and judicial restraint, and toward "progressive" ideas (abortion rights, gay rights, etc.) more popular among the social elites in the nation's capital. Blackmun said he found his "growth" to be "a liberating experience." Kennedy may have found it equally seductive.
Clarence Thomas, Be Not Afraid, 2001 Francis Boyer Lecture, American Enterprise Institute, Annual Dinner (Washington, D.C.) Publication Date: February 13, 2001
A judge who strictly adheres to the rules of impartiality and judicial restraint is likely to reach sound conclusions. But as I’ve said, reaching the correct decision itself is only half the battle. Having the courage of your convictions can be the harder part. - AEI - News & Commentary
The Origin and Scope of Roe -- Professor Douglas W. Kmiec presents letters and records of correspondence between members of the Roe court that reveal questionable motivations as well as a fundamental disrespect for normal principles of judicial restraint.
Rehnquist, "Roe V. Wade, 410 U.S. 113 (1973):
"To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter." caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=410&invol=113
FT January 2003: Constitutional Persons, Robert H. Bork made the following comments about Roe v. Wade:
"Blackmun invented a right to abortion....Roe had nothing whatever to do with constitutional interpretation. The utter emptiness of the opinion has been demonstrated time and again, but that, too, is irrelevant. The decision and its later reaffirmations simply enforce the cultural prejudices of a particular class in American society, nothing more and nothing less. For that reason, ROE is impervious to logical or historical argument; it is what some people, including a majority of the justices, want, and that is that....Science and rational demonstration prove that a human exists from the moment of conception....Scalia is quite right that the Constitution has nothing to say about abortion."
The federal courts have become the law breaking branch of the federal government. Congress can remove appelate jurisdiction of the USSC and jurisdiction of lower federal courts We the People Act(HR 3893 IH) and leave these issues with the states.
All I can say is the ENTIRE Warran and Berger USSC can go straight to HELL!
Souter a moderate? Yeah, right. He's the biggest mistake Bush 41 made.
Danial Schorr is SO MSM!
I'm curious, what are the odds someone other than Rehnquist will leave the Supreme Court in the next four years?
Rehnquist seems a given with illness, age, and G.W. in the W.H. Other names have been circulated (Like O'Connor) but the way these "moderates" have shown extreme concern for what the editorialists at the NYT's think I have to wonder if they will retire and allow possibility of a conservative to replace them.
I would certainly HOPE they'd at least pay back those that nominated them (Reagan, 41) by allowing Republicans to fill their seats but I wonder if we can expect at least that much loyalty from them.
Oliver Wendell Holmes retired in January of 1932, at age 91 having become the oldest member ever of the Supreme Court.
Women have long lives. I could see O'Connor & Ginsburg hanging on for another decade without significant medical problems, and with a possibility of being replaced with a Scalia/Thomas clone. Stevens could wait till Bush leaves, or wait and see how things go with Rehnquist's replacement.
It's all speculation without knowing them personally.
O'Connor, Souter, and Kennedy are "swing moderates."
And Kofi Annan is a "world leader."
And Bill Clinton is a "moral man."
UCI=8.
In the worldview of Daniel Schorr, the supreme court is only "balanced" if it has an equal number of liberals and conservatives. Why doesn't he apply that same standard of "balance" to CBS, or NBC, or ABC, or the NY Times?
I believe both ladies have health issues...O'Connor would like to retire..I read that she's waiting for Renquist to retire first..the assumptio is that they want the first Senate floor fight to be about Bush elevating a sitting AJ..Scalia or Thomas..to the CJ..\make the left expend their ammo, so to speak.. Ginnsburg also has health issues, but the sisterhood will make her hold on until she dies, or until a Dem is in the WH..whichever comes first..
Ginnsburg also has health issues, but the sisterhood will make her hold on until she dies, or until a Dem is in the WH..whichever comes first..
LOL - They will probably take her to a taxidermist and have her permanently mounted on SCOTUS (with thumb pointing down in coliseum fashion), if she does die prematurely.
Premature is in the eyes of the beholder.
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